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Ohio Adds New Exceptions to the Definition of “Public Records” Relating to Dash-Cam and Body-Cam Recordings

By: Ami Imbrogno

In this day and age, it seems that not a week goes by without turning on the evening news, logging onto Facebook, or firing up a YouTube application and seeing videos depicting police encounters with civilians.  Many of these videos are recorded on private cell phones and released by private citizens; however, some of these videos have been obtained by individuals, news sources, or other entities via public record request, the laws surrounding which are changing.

On January 7, 2019 Governor Kasich signed into law HB 425, “Declare police body camera recordings not to be public records,” to be effective April 8, 2019.  The law does not declare that all dash-cam and body-cam recordings are not public record, but instead declares that “restricted portions” of the recordings are not included in the definition of public record.  The law defines “restricted portions as the following:

  • The image or identity of a child or information that could lead to the identification of a child who is a primary subject of the recording when the law enforcement agency knows or has reason to know the person is a child based on the law enforcement agency’s records or the content of the recording;
  • The death of a person or a deceased person’s body, unless the death was caused by a peace officer or the consent of the decedent’s executor or administrator has been obtained;
  • The death of a peace officer, firefighter, paramedic, or other first responder, occurring while the decedent was engaged in the performance of official duties, unless consent of the decedent’s executor or administrator has been obtained;
  • Grievous bodily harm, unless the injury was effected by a peace officer or the consent of the injured person or the injured person’s guardian has been obtained;
  • An act of severe violence against a person that results in serious physical harm to the person, unless the act and injury was effected by a peace officer or the consent of the injured person or the injured person’s guardian has been obtained;
  • Grievous bodily harm to a peace officer, firefighter, paramedic, or other first responder, occurring while the injured person was engaged in the performance of official duties, unless the consent of the injured person or the injured person’s guardian has been obtained;
  • An act of severe violence resulting in serious physical harm against a peace officer, firefighter, paramedic, or other first responder, occurring while the injured person was engaged in the performance of official duties, unless the consent of the injured person or the injured person’s guardian has been obtained;
  • A person’s nude body, unless the person’s consent has been obtained;
  • Protected health information, the identity of a person in a health care facility who is not the subject of a law enforcement encounter, or any other information in a health care facility that could identify a person who is not the subject of a law enforcement encounter;
  • Information that could identify the alleged victim of a sex offense, menacing by stalking, or domestic violence;
  • Information, that does not constitute a confidential law enforcement investigatory record, that could identify a person who provides sensitive or confidential information to a law enforcement agency when the disclosure of the person’s identity or the information provided could reasonably be expected to threaten or endanger the safety or property of the person or another person;
  • Personal information of a person who is not arrested, cited, charged, or issued a written warning by a peace officer;
  • Proprietary police contingency plans or tactics that are intended to prevent crime and maintain public order and safety;
  • A personal conversation unrelated to work between peace officers or between a peace officer and an employee of a law enforcement agency;
  • A conversation between a peace officer and a member of the public that does not concern law enforcement activities;
  • The interior of a residence, unless the interior of a residence is the location of an adversarial encounter with, or a use of force by, a peace officer; and,
  • Any portion of the interior of a private business that is not open to the public, unless an adversarial encounter with, or a use of force by, a peace officer occurs in that location.

Those exceptions that allow disclosure upon receipt of consent of the subject may only be released with the consent if one of the following apply:

  • The recording will not be used in connection with probable or pending criminal proceedings; or,
  • The recording was used in connection with a criminal proceeding that has been dismissed or for which a judgment has been issued, and will not be used again in connection with any probable or pending criminal proceedings.

 The law also provides that if a public office denies a request to release a restricted portion of a recording, the requestor may file a complaint for mandamus with the court of claims, which will allow the release if it determines by clear and convincing evidence that public interest substantially outweighs privacy interests and other interests asserted to deny release.

Many of these components of the definition fall within other exceptions to public records and government entities are probably already withholding or redacting recordings that contain those components, such as confidential law enforcement investigatory records or information pertaining to the recreational activities of a person under the age of eighteen. However, government employees who handle the release and redaction of records should familiarize themselves with the new definition and continue to follow all other laws relating to public records.  For example, records should be redacted where possible and only fully withheld if redaction would create a substantial burden or would remove all value from the recording.

Government entities should also review their records retention schedules to make certain it addresses this type of footage.  They should remember that even if these materials are no longer public record, they could be relevant to future litigation.

Finally, the new law does not make it clear what procedures are required to be followed in obtaining “consent” to release records; it does not prescribe what lengths the government entity needs to go to in order to obtain consent or in which form the consent must be.  Those who obtain consent to release records should in the minimum ensure that consent is given knowingly and in writing.


For more information on this matter or any other civil rights and government liability questions, contact Ami at aimbrogno@mrrlaw.com or 440.505.2713.

Ami is an Attorney in MRR’s Cleveland office and focuses her practice on civil rights and government liability defense, employment and labor defense, public sector law, and education law.

 

MRR School Alert: Teacher’s Failure to Enter Grades Constitutes Good and Just Cause for Termination

By: Stacy V. Pollock

Ever since the Ohio General Assembly amended the state’s teacher termination statute (R.C. §3319.16) years ago to reference a “good and just cause” standard, school boards have struggled to understand what constitutes “good and just cause.” Last week, an Ohio state court of appeals confirmed that a teacher’s failure to enter her student’s final grades constitutes “good and just cause”, and thus is a terminable offense under R.C. §3319.16.

In Thomas v. Dayton Pub. Schools Bd. of Edn., 2018-Ohio-4231 (2nd Dist., Oct. 19, 2018), the Board of Education initiated termination proceedings against a teacher on four counts including a count of failure to enter final grades for her students. Pursuant to her statutory rights, the teacher demanded an administrative hearing. A Referee took three days of testimony and evidence, and ultimately recommended no termination on all counts except on the charge that the teacher failed to enter final grades for her students.

The Board reviewed the hearing transcript and evidence, rejected the recommendation on the first three counts, and found that all counts were sufficiently supported so as to constitute good and just cause for termination under R.C. §3319.16. As she was permitted to do, the teacher appealed the Board’s decision to the common pleas court. The teacher argued, in part, that the intent of §3319.16 is not served if the Board can reject the Referee’s findings without an explanation.   The trial court may only reverse a board’s order of termination of a teacher’s contract where it finds that the board’s termination order is not supported by or is against the weight of the evidence. The trial court vacated the Board’s Order as to each of the charges except the charge relating to the teacher’s failure to enter final grades.

The trial court affirmed the Board’s decision to terminate based upon the charge of her failure to enter her students’ final grades. The Ohio Second Appellate District reviewed the trial court’s decision to ensure that the trial court had not abused its discretion. The Second District held that the trial court had not abused its discretion.

Like the Referee, the Board and the trial court, the Second District determined that the teacher’s failure to enter final grades into the school’s electronic grading system was sufficiently good and just cause for termination. The evidence did not support the teacher’s explanation that she was unfamiliar with the electronic system used for grades and was therefore unable to submit the grades. The teacher knew that the grades were due, knew that the final grades were critical to students, and she knew that the grades would be due a month before their due date.  Yet, she made scant effort to input the grades on time.

While this matter ultimately was determined in favor of the Board (pending any possible appeal by the teacher to the Ohio Supreme Court), the Board spent over two years of energy and possibly significant financial resources defending the termination. Boards are encouraged to stay apprised of court decisions that assist in defining the §3319.16 “good and just cause” standard.  Mazanec, Raskin & Ryder (MRR) will continue to keep an eye on any other noteworthy cases and report them, accordingly.


For more information on this matter or any other school law questions, contact Stacy at spollock@mrrlaw.com or 614.324.0163.

Stacy is a Partner in MRR’s Columbus office and is a certified specialist in employment and labor law, in addition to a certified Professional in Human Resources. She has considerable experience in education law, representing schools and school administrators involving employee and student disciplinary matters. Stacy also advises public and private employers in matters involving leave and discipline issues, personnel policy matters and labor negotiations and arbitrations.

 

MRR Alert ~ Ohio Supreme Court Makes it Clear: Faulty Work is not Fortuitous

By: Chenee M. Castruita

On October 9, 2018, The Ohio Supreme Court issued its anticipated Decision in Ohio Northern University v. Charles Construction Services, Inc., et al., Slip Opinion No. 2018-Ohio-4057 holding that a subcontractor’s faulty work is not an “occurrence” under a commercial general liability (“CGL”) policy. The Court determined that in the commercial construction setting, an insurer underwriting and issuing CGL coverage is not required to defend or indemnify its policyholder or any named insured against claims for property damage caused by a subcontractor’s faulty workmanship.

A Review of Westfield Inc. Co. v. Custom Agri Sys., Inc. (2012) 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269

In reaching this Decision, the Court re-visited its 2012 holding in Westfield Inc. Co. v. Custom Agri Sys., Inc. In this earlier case, Custom Agri, as a subcontractor, had allegedly faultily constructed a steel grain storage bin. Custom Agri was an insured under a CGL policy issued to it by Westfield Insurance which covered property damage caused by an “occurrence.” Westfield Inc. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269 at ¶ 3.At the trial court level, Westfield intervened, seeking declaratory judgment and a determination that it had no duty to defend or indemnify Custom Agri, inasmuch as all claims were related to Custom Agri’s own work and did not involve “property damage” caused by an “occurrence”, as those terms were defined within the Westfield policy. Ohio N. Univ. v. Charles Constr. Servs., Inc., Slip Opinion No. 2018-Ohio-4057 at ¶¶ 13-15, citing Westfield Inc. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269.

The Ohio Supreme Court ultimately decided that the Westfield’s policy definition of “occurrence” as being an “accident, including continuous or repeated exposure to substantially the same general harmful conditions” did not include property damage caused by the insured contractor’s own faulty work. Ohio N. Univ. v. Charles Constr. Servs., Inc., Slip Opinion No. 2018-Ohio-4057, citing Westfield Inc. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269 at ¶¶ 11-14. The Court reasoned that because an “accident” inherently involves fortuity, and faulty work is not fortuitous, there was no coverage under the Westfield CGL policy related to claims for property damage caused by faulty work. Id. at ¶ 18.

While Custom Agri Sys. was a subcontractor and its policy may have included a products-completed operations-hazard (“PCOH”) clause as well as a subcontractor clause, the Court determined that these separate provisions were not addressed directly. Now, and in its most recent Decision on the issue, the Ohio Supreme Court has directly addressed the effect of PCOH and subcontractor clauses. Id. at ¶ 19.

 

Ohio Northern University v. Charles Construction Services, Inc., et al. (2018)
Slip Opinion No. 2018-Ohio-4057

Factual Background
In Ohio Northern University v. Charles Construction Services, Inc., et al., Ohio Northern University contracted with Charles Construction Services, Inc. to construct the University Inn and Conference Center. The contract required Charles Construction to maintain a CGL policy that included a PCOH clause. Charles Constr. at ¶ 4. Charles Construction obtained a CGL policy with both a PCOH clause as well as a subcontractor clause from Cincinnati Insurance Company. The policy included terms specific to work performed by subcontractors. Charles Construction paid an additional premium for the PCOH coverage. Id. at ¶ 5.

After work was completed, Ohio Northern University discovered water damage from leaks believed to be caused by defective work of Charles Construction and its subcontractors. Ohio Northern University filed suit, and Charles Construction answered and filed third-party complaints against its subcontractors. Charles Construction submitted its claim to Cincinnati Insurance Company and asked that it defend and indemnify Charles Construction. In response, Cincinnati Insurance Company intervened at the trial court level, seeking declaratory judgment and a determination that it was not obligated to either defend or indemnify Charles Construction, due to the earlier Decision in Custom Agri. Id. at ¶¶ 7-8.

The particular PCOH clausecovered property damage “occurring away from premises you own or rent and arising out of  *** ‘your work’ except *** work that has not yet been completed or abandoned”. Charles Constr. at ¶ 24. It further excluded coverage for property damage to the policyholder’s work arising out of it or any part of it.  However the Court  specifically stated the exclusion did not apply if the damaged work was performed by a subcontractor. Id. at ¶ 26.

The Ohio Supreme Court’s Analysis
Despite the Cincinnati Insurance Co. CGL policy containing both PCOH language as well as subcontractor-specific language, the Court found there was no coverage for the subcontractor’s faulty work. Specifically, the Court found the PCOH and subcontractor-specific language had no effect, since the damage was not due to an “occurrence” under the Coverage A portion of the Cincinnati Insurance Co. CGL policy:

“The language within the Coverage A portion of the CGL policy is critical to the policy’s overall effect. It states that CIC agrees to pay for property damage under certain circumstances. But the damage must be due to an “occurrence,” which the policy defines as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Again, there is no question that the water-related damage to the inn was “property damage” and was discovered after the work had been completed. But unless there was an “occurrence,” the PCOH and subcontractor language has no effect, despite the fact that Charles Construction paid additional money for it.

If the subcontractors’ faulty work were fortuitous, the PCOH and subcontractor-specific terms would require coverage. But as we explained in Custom Agri, CGL policies are not intended to protect owners from ordinary “business risks” that are normal, frequent or predictable consequences of doing business that the insured can manage. Here we cannot say that the subcontractors’ faulty work was fortuitous.”

Ohio N. Univ. v. Charles Constr. Servs., Inc., Slip Opinion No. 2018-Ohio-4057 at ¶¶ 28-29, citing Westfield Inc. Co. v. Custom Agri Sys., Inc., 133 Ohio St.3d 476, 2012-Ohio-4712, 979 N.E.2d 269.

The Court acknowledged its decision to be contrary to recent decisions of other courts, and cited its duty to look to the plain and ordinary meaning of the language in the CGL policy to find the intent of the parties. Id. at ¶ 32.

Looking Forward
It seems clear from this Decision that the Court considers faulty construction work to be an anticipated business risk of a contractor or general contractor, and will not require an insurer to defend or indemnify against claims or damages arising out of faulty work, at least in cases where a CGL policy exists limiting covered damages to those caused by an “occurrence.”

Contractor and subcontractors should revisit their current insurance risk plans and coverages, and work directly with their respective brokers, agents and insurers to determine the current status of their risk coverages.

We also recommend those contractors that are either anticipating or presently involved in pending litigation reach out to their insurers, agents and/or brokers, immediately, for further guidance.


For more information on Ohio Northern University v. Charles Construction Services, contact Chenee Castruita at 614.324.1039 or via email at ccastruita@mrrlaw.com.

 

Joe Nicholas Named 2019 “Lawyer of the Year” for Transportation Law by Best Lawyers

Mazanec, Raskin & Ryder Co., LPA (MRR) is proud to announce that attorney Joseph F. Nicholas, Jr. has been chosen Cleveland’s 2019 “Lawyer of the Year” in Transportation Law by Best Lawyers. Only one lawyer in each practice area from each of the major metropolitan areas in Ohio is honored as “Lawyer of the Year.” Best Lawyers compiles its lists of outstanding attorneys by conducting thousands of confidential peer-review surveys. Lawyers honored as “Lawyers of the Year” have received particularly high ratings by earning the respect of their peers for their abilities, professionalism, and integrity.

Joe is President and Managing Partner of MRR, which has offices in Cleveland and Columbus, Ohio, and Lexington, Kentucky. He has a diverse legal practice with an emphasis on handling commercial trucking (long haul and short haul) and commercial coach carrier matters. His practice also includes the defense of professionals including lawyers, accountants, doctors, dentists, architects and insurance agents and brokers throughout his career.

In addition, he has significant experience litigating bad faith claims as well as defending various third-party matters, including general liability, product liability and construction defects. Joe has an AV Preeminent rating from Martindale-Hubbell Law Directory and was also selected as a Best Lawyer in America for Transportation Law in 2018.

Prior to being named President and Managing Partner in 2012, Joe served as the firm’s Administrative Partner of its Cleveland office from 2000-2012.

Active in a number of professional organizations, he is a member of the Ohio State Bar Association; the Cleveland Metropolitan Bar Association; the Professional Liability Defense Federation (Past Chair of Insurance Agents & Brokers Committee); Claims and Litigation Management Alliance; the Trucking Industry and Defense Association; and Your House Counsel, in which he currently serves as the Group Chair.

MRR Attorneys named to 2019 Best Lawyers in America® list

Mazanec, Raskin & Ryder Co., LPA (MRR) is pleased to announce that seven attorneys have been named to the 2019 Edition of Best Lawyers®, the oldest and most respected peer-reviewed publication in the legal profession. Lawyers on The Best Lawyers in America© list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise.

MRR would like to congratulate the following attorneys named to the 2019 Edition of The Best Lawyers in America© list:

Todd M. Raskin (Cleveland), Civil Rights Law

John T. McLandrich (Cleveland), Civil Rights Law

Thomas S. Mazanec (Cleveland), Product Liability Litigation – Defendants

Joseph F. Nicholas, Jr. (Cleveland), Transportation Law

George V. Pilat (Cleveland), Insurance Law

Elisabeth “Lisa” Gentile (Columbus), Medical Malpractice – Defendants

Stacy V. Pollock (Columbus), Education Law

 

About Best Lawyers®

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Over 79,000 leading attorneys globally are eligible to vote, and we have received more than 12 million votes to date on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.” For more information, visit bestlawyers.com.

Thank you to Carl Cormany for his 17 years of dedication and service!

MRR would like to thank Carl E. Cormany for his dedication and service to the firm over the past 17 years.  Mr. Cormany retired from the practice of law on July 2. His focus was on the defense of claims against local governments and their employees, particularly law enforcement officers, and defense of employment claims against governmental and private entities.

With more than 25 years of legal experience, Carl practiced at all levels of the federal and state courts and in federal agencies including the Equal Employment Opportunity Commission and state agencies such as the Ohio Civil Rights Commission.

“Carl was an integral part of MRR’s success and he will be missed at the firm,” said Todd M. Raskin, Co-Founding Partner of MRR. “We wish him the very, very best as he enters a new chapter in his life!”


US Supreme Court holds that Cell-Site Data is Generally Protected by the Fourth Amendment

By: Ami Imbrogno

Technology has changed rapidly over the past 50 years.  Indeed, just 15 years ago, most people did not imagine that they would be carrying the entire world wide web in one pocket or purse, or that all of their movements would be tracked via cell phone. As technology has developed, more people have become increasingly concerned about the sheer amount of data that is collected by mobile telephone devices, and how this data could be used to invade their privacy. One of last week’s decisions from the Supreme Court, Carpenter v. United States, addressed how privacy concerns, vast amounts of electronic data, and the Fourth Amendment could intersect.

Eight years ago, a string of robberies took place in Michigan and Northern Ohio. Police obtained phone numbers of some suspects involved in the robberies, and subpoenaed cell-site location information (CSLI) for the numbers, absent a search warrant, which they used as evidence placing Carpenter nearby each of the robberies at the times they occurred.  It is not uncommon for law enforcement to obtain this information, and this type of evidence is sometimes even used in insurance fraud prosecutions.

Under the Stored Communications Act, the police did not need or a warrant supported by probable cause to obtain these records from Carpenter’s cell phone provider, but instead, only needed “reasonable grounds” for believing that the records were “relevant and material to the ongoing investigation.”  Carpenter moved to suppress the CSLI evidence, alleging that it was the product of an illegal search under the Fourth Amendment.  The trial court denied the motion, and the Sixth Circuit affirmed the denial based on a decades-old concept called the “third-party doctrine.”

The third-party doctrine was an eventual product of the Supreme Court’s 1967 landmark decision Katz v. United States.  In Katz, the Court announced the rule that under the Fourth Amendment, a “search” occurs when the government intrudes into a sphere in which one has a reasonable expectation of privacy, so long as society is also prepared to recognize that expectation as reasonable. In Katz, the court determined that one has a reasonable expectation of privacy in a conversation held within a closed telephone booth – a concept that seems foreign to those living in 2018.  Since 1967, Fourth Amendment “search” jurisprudence has been based on Katz. Specifically, in the late 1970s, the Court held in United States v. Miller and Smith v. Maryland that one has no reasonable expectation of privacy in papers or effects that he or she trusts to the hands of a third party – i.e., banking records or records of phone numbers dialed.  Thus, the third-party doctrine was born.

Perhaps recognizing that most people entrust their entire lives to third parties in the digital age (who doesn’t have their emails, schedules, search histories, and location data stored by a third party like Google or Apple?) the Court ruled in Carpenter’s favor and crafted a narrow decision holding that generally, the government’s acquisition of cell-site records constitutes a search under the Fourth Amendment.  Though the records are stored by third parties, cases involving CSLI are inherently different than previous cases involving bank records or dialed phone numbers because they provide a complete picture of a person’s movements for a period extending to five years. And, though CSLI technology was less complete at the time of Carpenter’s arrest and could only provide information about a general area in which a particular mobile device is located, the Court expects that CSLI will only get more precise as technology improves.

The Court was careful to clarify that its decision does not apply to any aspect of technology other than CSLI, and that it was not announcing an opinion relating to security cameras, national security measures, or other forms of technology.  However, Carpenter opens the door for defendants to at least argue that certain types of technological evidence cannot be obtained absent a warrant, if they implicate privacy interests. If the third-party doctrine does not apply to CSLI, to what other types of evidence will courts refuse to apply the doctrine?  What records are so intrusive upon privacy that the third-party doctrine does not apply to them?

Furthermore, the majority opinion in Carpenter was only supported by five of the nine justices.  All four dissenting justices filed separate dissenting opinions.  Justice Gorsuch and Justice Thomas both suggested in their dissents that the Court scrap the “reasonable expectation of privacy” test announced in Katz and consider that the founding fathers originally intended the Fourth Amendment to be a protection of property rights, not a protection of “privacy.” A search would therefore occur when the government searched a person’s “property.”

The ideas set forth by Justice Gorsuch and Justice Thomas were not unlike those espoused by the late Justice Scalia in United States v. Jones (which involved the placement of a GPS tracker on a defendant’s vehicle).  Should these justices persuade other justices to their point of view, or if like-minded justices join the Court, we could see a radical shift in the definition of a “search” under the Fourth Amendment, which would necessitate new rules for when warrants are required prior to a search.

It is also unclear under Carpenter whether police will be able to obtain these records if a third party voluntarily provides them to police, absent solicitation from law enforcement.  Specifically, if an insurance company were to obtain CSLI from a provider, and then the insurance company provides that information to the police absent a police request, will the evidence be available to use in a prosecution of the insured for insurance fraud?  Prior to last Friday, it would be easy to say that the records could likely be used without implicating the Fourth Amendment.  In the wake of Carpenter, however, it is not unforeseeable that a defendant may try to argue that the special character of CSLI bars the police from using the non-solicited records, too.

For the time being, it is clear that under Carpenter, a “search” occurs when the government obtains CSLI.  One must not forget that warrants only need to be obtained for “unreasonable” searches.  The Court did not state how much CSLI data must be sought before a search is considered unreasonable.  In addition, the Court also held that exceptions to the warrant requirement, like exigent circumstances, would still apply to CSLI.

The current best practice for law enforcement in the wake of Carpenter is to obtain a warrant whenever possible when seeking CSLI.  Should the data be needed in exigent circumstances – for example, quickly to save a person’s life – a warrant may not be needed.  However, if an officer has probable cause to support a warrant, and exigent circumstances do not exist, it is best to obtain a warrant, no matter how much data is being requested.  Moreover, law enforcement should not be surprised if searches not backed by warrants are challenged more frequently in courts of law, and may expect to see further changes to the law and procedure down the road.


For more information or questions regarding this article, contact Ami Imbrogno at aimbrogno@mrrlaw.com.

Ami Imbrogno

Mazanec, Raskin & Ryder Welcomes Steven Kelley to Cleveland Office

Mazanec, Raskin & Ryder (MRR) is pleased to announce that Steven K. Kelley has joined the firm’s Cleveland office as a Partner in its Professional Liability Practice Group.

Prior to joining MRR, Steve worked at CNA Insurance Company for over 12 years, initially as a Managing Trial Attorney and then an Assistant Vice President in the company’s litigation department.

At MRR, his practice will focus on the defense of architects and engineers as well as other professional liability matters and product liability claims.

“With Steve’s experience and leadership in the insurance industry, his addition highlights our commitment to enhancing both the breadth and quality of services that we can provide to our clients,” said MRR President and Managing Partner Joseph F. Nicholas, Jr. said. “We are thrilled to welcome him to the firm.”

Mr. Kelley earned his Juris Doctorate from Case Western Reserve University School of Law and he received his Bachelor of Arts degree from Ohio Northern University. He is active professionally as a member of the Ohio Bar Association, Claims and Litigation Management Alliance, Cleveland Association of Civil Trial Attorneys (Former President), Defense Research Institute, and is a Life Member of the Eighth Judicial District Conference.

MRR Legal Update: Second Circuit Court Decision ~ “Because of…Sex” Discrimination Protections for Sexual Orientation

By: Tami Z. Hannon

“Because of…sex.”  Three small words have garnered much spilled ink and legal opinions.  What is “sex?”  When is an employee discriminated against “because of” his or her sex?  Most importantly for this article, is an employee who is terminated due to his or her sexual orientation discriminated against “because of…sex?”

The support for sexual orientation as sex discrimination under Title VII is growing.  On February 26, 2018, the Second Circuit Court of Appeals became the second circuit to hold that discrimination due to sexual orientation is discrimination “because of…sex” as under Title VII.  This opinion joins the recent Seventh Circuit Court of Appeals opinion which likewise held that sexual orientation discrimination is prohibited by Title VII.  These opinions have established new law for New York, Vermont, Connecticut, Illinois, Indiana and Wisconsin, while leaving the remaining states in confusion over the scope of Title VII’s protections.

Title VII Background

Title VII of the Civil Rights Act of 1964 prohibited employers from discriminating against current and potential employees on the basis of several characteristics.  The issue at hand in recent rulings has been the prohibition against discrimination “because of…sex.”  Prior to 2015, the courts largely agreed that “sex” discrimination applied to biological gender, and gender stereotyping (i.e. beliefs on how a male or female should act).  Courts largely rejected the notion that “sex” included discrimination based on sexual orientation.

Evans v. Georgia Regional Hospital

In March of 2017, the Eleventh Circuit Court of Appeals was asked to determine whether sexual orientation discrimination violated Title VII.  The Eleventh Circuit held that it was bound by its prior decisions that sexual orientation was not protected under Title VII.  As such, it dismissed Ms. Evans’ complaint alleging that she was subjected to harassment and discrimination as a result of her sexual orientation.  Ms. Evans sought review by the U.S. Supreme Court; however, on December 11, 2017, the U.S. Supreme Court declined to hear the appeal.

Hively v. Ivy Tech

In April of 2017, the Seventh Circuit Court of Appeals held that discrimination “because of…sex” included sexual orientation discrimination.  In so ruling, the Seventh Circuit held that decisions based on sexual orientation are inherently based upon an individual’s gender as a female who enters into a romantic relationship with a male is treated differently than a male who enters into a romantic relationship with another male.  The only variable is the biological gender of the employee.  As such, the sole factor was biological gender, or sex.  This ruling was not appealed to the U.S. Supreme Court.

It was on this stage that Zarda v. Altitude Express was recently decided.

Zarda v. Altitude Express

Mr. Zarda was a tandem sky diving instructor for Altitude Express.  Mr. Zarda stated that he would occasionally reveal his sexual orientation to female clients as a way of making them feel more comfortable about being closely strapped to an unfamiliar male.  One of Mr. Zarda’s clients alleged that he touched her inappropriately and then revealed his sexual orientation as a way of excusing his conduct.  She told her boyfriend of this exchange.  Her boyfriend contacted Altitude Express to complain.  Mr. Zarda was subsequently terminated as a result of the complaint.  Mr. Zarda alleged that his termination was the sole result of his sexual orientation and his failure to conform to the stereotype of a “straight male.”

Under prior rulings in the Second Circuit, claims of gender stereotyping could not be based on sexual orientation nor was sexual orientation recognized as sex discrimination.  As such, Mr. Zarda’s complaint was initially rejected.  Mr. Zarda appealed the dismissal to the Second Circuit Court of Appeals, which upheld the dismissal.  He then requested, and was granted, an en banc hearing. An en banc hearing is held before all judges appointed to that Circuit and provides the process for a court to overrule its prior decisions.  The granting of such a hearing signals the potential for a significant departure from prior cases.

After the en banc hearing, the Second Circuit Court of Appeals issued a lengthy and disputed opinion holding that sexual orientation constitutes discrimination “because of…sex” as defined by Title VII.  The Court held that the purpose of Title VII was to make sex and those traits associated with sex irrelevant to employment decisions.  The Court recognized that sexual harassment claims were initially not considered discrimination as they were not based on being a female, but for refusing to submit to sexual requests.  However, courts soon drew the distinction that the employee was the target of the sexual advances because of her gender, making sexual harassment a form of gender discrimination.  Male-on-male harassment was also barred as being based on gender and as “a reasonably comparable evil” against which Title VII was designed to protect.  Based on those cases, the Second Circuit Court of Appeals held that sexual orientation discrimination was necessarily the result of the sex of the people involved in the relationship and ultimately a decision based on sex.  Accordingly, sexual orientation discrimination was found to be discrimination “because of…sex” in violation of Title VII.

The Second Circuit Court of Appeals also held that sexual orientation discrimination constituted associational discrimination.  Associational discrimination was originally recognized under Title VII largely to offer protection for interracial marriages.  It was held that, in those case, employees were subjected to discrimination based on their own race and the race of those with whom they associated as it was the perceived racial misalignment that was the motivation for the discrimination.  The Second Circuit Court of Appeals found that rational applied with equal force to sexual orientation discrimination as it punished an employee based on the sex of the individual with whom he or she intimately associated.  As it is widely accepted a female should not be fired for having male friends, the Court found a lesbian employee should be similarly protected for associating with females, rather than males.

Impact of Zarda v. Altitude Express

The Zarda decision was far from unanimous.  Only 7 of the 13 judges hearing the case agreed that sexual orientation discrimination constitutes discrimination “because of…sex.”  Eight of the 13 judges found it was associational discrimination.  The allegation that sexual orientation discrimination is a form of gender stereotyping was only accepted by 6 of the 13 judges.  This sharp division shows that Title VII’s coverage of sexual orientation is far from settled.

Under President Obama, the Equal Employment Opportunity Commission was active in advancing protections for sexual orientation.  Under President Trump, the Commission has taken a more conservative view.  Regardless, once positions and protections are established by the courts, it becomes more difficult to change them as courts are bound to follow their prior rulings and interpretations issued by their circuit.  Given this, ongoing and future litigation will be impacted by these rulings regardless of any policy decisions made by the governmental administration.

The Zarda, Evans and Hively decisions have created a split among the courts as to whether sexual orientation discrimination is covered under Title VII.  Employers will need to be aware of the coverage for their specific business locations.  As courts are beginning to consider and reverse prior case rulings, we are also likely to see claims of sexual orientation discrimination increase as individuals seek to clarify Title VII protections.

The U.S. Supreme Court recently declined to hear the Evans case as to whether Title VII includes protections for sexual orientation.  The decision not to hear that appeal was not explained, but could be the result of several factors including poorly developed legal analysis by the lower courts and allegations by the employer that it had never been served with the complaint.  As the split among the circuits grows, it will likely only be a matter of time before the Supreme Court agrees to decide the issue.


For  more information, contact Tami Z. Hannon at thannon@mrrlaw.com or 440.424.0009.

MRR Columbus Office Expands with Partner Paul-Michael La Fayette

MRR is pleased to announce the addition of Paul-Michael La Fayette to its Columbus office. He represent clients in lawsuits involving professional malpractice, premises liability, contracts, employment, construction, civil rights, zoning, wrongful death and products liability.

“We are thrilled to expand our services in Columbus with the addition of Paul,” MRR President and Managing Partner Joseph F. Nicholas, Jr. said. “He brings to the firm expertise in a number of practice areas, a set of exceptional legal skills, and a client-focused commitment to excellence.”

Mr. La Fayette represents several professionals in administrative licensure proceedings before their professional Boards. In addition to professional liability, he regularly represents governmental entities in litigation and as general counsel. Paul is a member of the Ohio State Bar Association, Columbus Bar Association, The Defense Research Institute (DRI), PIAA, as well as a guest lecturer for The Ohio State University College of Dentistry.

In the community, Paul is the past president of the Epilepsy Foundation of Central Ohio, member of the Boy Scouts of American (Simon Kenton Council), Plain City Area Baseball Association member, and serves as baseball coach at Jonathan Alder Junior High.

A graduate of West Virginia Wesleyan College, Mr. La Fayette sought his Master’s at West Virginia University and then earned his J.D. from Capital University Law School in 1996.